People v. Superior Court (Ludwig)

California Court of Appeal Nov 18, 1985 No. A031985Published

Before: Scott

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Holding. The court held that the trial judge exceeded its jurisdiction by engaging in a plea bargain prohibited by Penal Code section 1192.7, and that a writ of mandate is an appropriate remedy to vacate the plea.

Issues

Whether a petition for writ of mandate is available to the People to challenge a trial court's acceptance of a plea bargain.
Whether the trial court's actions constituted a prohibited plea bargain under Penal Code section 1192.7.

Disposition. remanded

Quotations verified verbatim against the opinion

“We have concluded that the court engaged in plea bargaining in violation of Penal Code section 1192.7.”

“If an improper plea bargain was entered, the court exceeded its jurisdiction in the traditional sense.”

“Let a peremptory writ of mandate issue compelling the San Mateo County Superior Court to vacate its acceptance of defendant’s plea change”

Opinion

SCOTT, J.

This petition for writ of mandate filed by the People of the State of California challenges the superior court’s acceptance of a plea change. We have concluded that the court engaged in plea bargaining in violation of Penal Code section 1192.7.

Real party in interest, Keith Allen Ludwig (defendant), was charged by information with, inter alia, kidnaping for robbery, simple kidnaping, and robbery, along with a prior felony conviction. On June 26, 1985, the court

[475]

accepted defendant’s change of plea to nolo contendere. At the hearing, the court referred to a “promise” of a maximum sentence of eight years, “made to induce” defendant to enter the plea. The court later characterized its action as “entering into a plea bargain over the District Attorney’s objection.” After taking the change of plea, the court referred the matter to the probation department and continued it for sentence. This petition followed.

We first address the procedural question of whether a petition for writ of mandate may be entertained in this situation, in light of the fact that the court’s action is not appealable by the People under Penal Code section 1238. We conclude that the test of

People

Superior Court (Howard)

(1968) 69 Cal.2d 491 [72 Cal.Rptr. 330, 446 P.2d 138] is met. As explained in

People

Municipal Court (Kong)

(1981) 122 Cal.App.3d 176, 180-183 [175 Cal.Rptr. 861], there are two prongs to the

Howard

test. The ruling must be in excess of the lower court’s jurisdiction in the traditional sense, and writ review must not subject defendant to the harassment of retrial or further trial.

If an improper plea bargain was entered, the court exceeded its jurisdiction in the traditional sense. Penal Code section 1192.7, enacted June 8, 1982, by initiative, prevents plea bargaining in cases involving certain serious offenses, including the offenses charged here, except in circumstances not pertinent here. Just as the court was without subject matter jurisdiction to entertain a renewed motion to suppress evidence at trial in

People v. Superior Court (Ludwig)

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SCOTT, J.

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